Giflo Engineering (BOP) (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBIC) and Others (JS 390/07) [2011] ZALCJHB 69; (2012) 33 ILJ 388 (LC) (16 August 2011)

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[2011] ZALCJHB 69
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Giflo Engineering (BOP) (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBIC) and Others (JS 390/07) [2011] ZALCJHB 69; (2012) 33 ILJ 388 (LC) (16 August 2011)

LABOUR COURT OF SOUTH
AFRICA
(HELD AT BRAAMFONTEIN)
Case: JS 390/07
In the matter between:
GIFLO ENGINEERING
(BOP) (PTY) LTD
…................................
Applicant
and
METAL AND ENGINEERING
INDUSTRIES BARGAINING
COUNCIL (MEIBC)
…......................................................
First
Respondent
COMMISSIONER SEENG
LETELE (
N.
O.)
….............
Second
Respondent
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA (NUMSA)
….........................................
Third
Respondent
ELIJA MONTSO
….......................................................
Fourth
Respondent
JUDGMENT
LAGRANGE, J:
Background
The employer in this
matter seeks to review and set aside an arbitration award issued by
the second respondent, a CCMA Commissioner,
on 3 February 2007. The
Commissioner found that the fourth respondent's dismissal on 31 July
2006 had been procedurally and substantively
unfair and reinstated
him with retrospective effect.
The fourth respondent,
Mr E Montso, had been employed by the company (“Giflo”)
since March 2002 and was working as
a ‘quality
inspector/control’ prior to his dismissal. He was dismissed by
the applicant on the grounds of insolence
and refusing to obey a
lawful instruction. The context in which the incident giving rise to
the disciplinary enquiry took place
was a series of events which
occurred when the employer wanted to transfer the applicant to the
premises of a client, All Lite,
to perform quality control functions
at All Lite’s premises instead of Giflo’s premises where
Montso normally worked.
Travelling to the client’s premises
would have entailed additional travel costs for Montso.
The charges against
Montso read as follows:
"
1) Insolence
towards a superior in so far as on 29/05/06 you refuse to listen to
the instructions given by Jan Groenewald by shouting
him down and
then proceeded to put the phone down in his ear.
2) Insolence towards a
superior insofar as on 30/05/06 when confronted by your superiors
Groenewald and Dawie Lubbe as to why you
disobeyed their direct
instruction to report for duty at A L and not Giflo, you again
shouted him down and proceeded to block your
ears, turned around and
walked away.
3) Insolence towards a
superior in so far as on 30/05/06 when approached by the manager of
the metal finish area (Willie Heyneke)
to stop interfering with the
workforce in the grinding area, you blocked your ears and turned
around and walked away.
4) Insolence towards a
superior in so far as on 12/06/06 you threatened your superior DL
with putting the phone down and not reporting
for duty at A L unless
you demand for transport money is not met.
5) failure to carry
out a lawful instruction in so far as on 30/05/06 you came to Giflo,
not adhering to the instruction given to
you by your superiors on
29/05/06 to report to All Lite on 30/05/06 which could lead to the
company incurring unnecessary expenses
as a result of rejected parts
being shipped to the customer due to the fact that you were not there
to inspect the parts.
" (sic)
Montso was found guilty
of insolence and failing to obey a lawful instruction and was
dismissed.
Applicant’s
prescription claim
After the review
application hearing, the applicant belatedly raised a claim in a
letter to the court, that the original award
had prescribed based on
the fact that the union and Montso had not taken any steps to
enforce the award which had been served
on the applicant on 14
February 2007.
The applicant sought to
rely on the decision of this court in
Police & Prisons
Civil Rights Union on behalf of Sifuba v Commissioner of the SA
Police Service & Others
(2009) 30 ILJ 130
. That
case dealt with an application by the employee party, in whose
favour an arbitration award had been issued, to dismiss
a review
application brought by the employer and to enforce the award as an
order of court. The employer raised a special plea
of prescription,
which the court upheld. Some important principles were affirmed in
the judgment of Musi AJ. Firstly, the court
held:
“
[33]
A valid arbitration award, like a court judgment in certain
circumstances, is regarded as a novation of the former debt on
which
the award was granted and the arbitration award itself constitutes
the new debt. The former debt is converted into a debt
that is due by
virtue of the valid arbitration award. New rights, duties and
obligations are created by a valid arbitration award.
If
an arbitrator's award is not made an order of court it will prescribe
after four years
.
See s 13(1)(f) and (i) read with s 11(d) of the Prescription Act. On
the other hand,
a
party's right to enforce the award by way of application to have it
made an order of court prescribes within three years of the

publication of the award
.
Cape Town Municipality v Allie NO
1981 (2) SA 1
(C) at 4F-H; Trust
Bank of Africa Ltd v Dhooma
1970 (3) SA 304
(N) at 308; Swadif (Pty)
Ltd v Dyke NO
1978 (1) SA 928
(A) at 944E-F; Primavera Construction
SA v Government: North West Province
2003 (3) SA 579
(B) at paras 13
and 14.
If
the arbitration agreement provides between the parties that the
arbitrator's award shall have the status of a judgment of a court
the
prescription period applicable to a judgment debt shall apply in such
a case
.
See Blaas v Athanassion
1991 (1) SA 723
(W) at 725H-J.”
1
The
court also confirmed that the fact that a review application has
been filed does not suspend the enforceability of an award

automatically, but the court may do so on application in terms of
section 145(3) of the LRA.
2
Importantly, the court
also held that the mere filing of an answering affidavit by the
award creditor in a review application,
does not amount to taking a
legal step to recover the debt owing in terms of the award that
would interrupt the running of extinctive
prescription in terms of
section 15(1) of the Prescription Act:
“
[41]
The answering affidavit, in casu, is not a process whereby a creditor
claims the payment of a debt. In this matter a counter-application

would have sufficed as a process whereby a debt is claimed. An
answering affidavit is not a counter-application. If the applicant

wanted to apply, simultaneously with its opposition to the review
application, to make the arbitration award an order of court
it
should have launched a counter-application. Sifuba's request in the
answering affidavit is not a counter-application.
”
3
In
Sifuba’s
case the employer was the respondent party in an application to
enforce the award, which had raised a special plea of prescription.

In this instance, it is the applicant who seeks to invoke
prescription as a distinct cause of action after pleadings have
closed
and not as a defence.
Section 17(2)
of the
Prescription Act
68 of 1969
states:
“
A
party to litigation who invokes prescription
shall
do
so in the
relevant
document
filed
of record
in
the proceedings:
Provided
that
a court may allow prescription to be raised
at
any stage
of
the proceedings.
”
(emphasis added)
The
respondents’ attorneys refer to the judgment of Hendricks J in
the case of
Minister of Justice and Constitutional Development
v Mathobela and
Others (1185/05)
[2007] ZANWHC 5
(25
January 2007)
. Judge Hendricks summarised the courts’
approach to the way in which prescription can be introduced to
proceedings as follows:
“
[13]
In
the case of
Rand
Staple-Machine Leasing v I.C.I. (SA) Ltd
1977
(3) SA 199
(W)
Viljoen
J
stated
the following on page 201 H – 202 A:-
“
I
do not agree with Mr Kuny that the interlocutory motion proceedings
initiated by a party who wishes to amend his pleadings are
such
proceedings as are envisaged by
sec 17
(2) of Act 68 of 1969. The
litigant who invokes prescription is invariably the defendant or the
defendant in reconvention in trial
proceedings
or
the respondent in motion proceedings and the document to be filed by
him of record
in
the trial proceedings is his plea or plea in reconvention
or
his opposing affidavit in motion proceedings
.”
(My
underlining.)
I
am in full agreement with this
dictum
of
Viljoen
J
.
[14]
In
Heeriah
and Others v Ramkissoon
1955
(3) SA 219
N
Milne
J
states
the following on page 225 G – 226 A:-
“
The
question of prescription was not raised by the defendants in their
plea, nor was any application made to the Magistrate or to
this court
to amend the plea so as to refer to it. I mention this because it is
provided for in sec 14 of Act 18 of 1943, as follows:-
‘A party
to a suit who raises prescription shall do so in the pleadings:
Provided that the court may allow prescription to
be raised at any
stage in the proceedings.’
I think that the
requirement that a party to a suit who raises prescription shall do
so in the pleadings, is peremptory in this
sense that the court will
not hold a claim made before it to be prescribed by extinctive
prescription unless the prescription is
raised in the pleadings,
whether in convention or reconvention, though
I
take it that the word ‘pleadings’ would be extended to
cover affidavits if the relevant proceedings were by way of

application or cross-application. I think that what was intended by
sec 14 was that prescription must be specifically raised in
the
pleadings (or affidavits, as the case may be) where it is relied upon
as rendering unenforceable the claim made by the opposite
party
.”
(My
underlining.)
[15]
Though Section 17 (2) refers to “relevant document” and
not specifically to “pleadings” as contained
in its
predecessor (Section 14 of Act 18 of 1943), I am of the view that the
“relevant document” is either a plea (special
plea) in
trial proceedings or an opposing affidavit in motion proceedings.
[16]
In my view heads of argument is an aid prepared by counsel or an
attorney or a litigant for the convenience of the Court. Heads
of
argument cannot be regarded as evidence by a party. In my view the
way to invoke prescription as envisaged in Section 17 (2)
is either
by way of a plea (special plea) in trial proceedings or an opposing
affidavit in motion proceedings. First Respondent
should have filed
an opposing affidavit even if the only issue contained therein would
have been prescription. By raising the issue
in the manner it did,
the First Respondent has, in my view, done so in an incorrect
manner.
”
4
I believe the same
considerations apply to the manner in which the the applicant has
sought to raise the issue of prescription,
quite apart from whether
it was even entitled to raise it given that the applicant had not
taken a step to enforce the award.
In this instance, the matter was
not raised in the affidavits, nor was it even raised in heads of
argument or at the hearing,
but simply in the form of a letter as an
afterthought. Even if it was possible for the applicant to raise
prescription, I do
not think that the interpretation of the phrase
‘the relevant document filed of record’ can encompass
the applicant’s
letter, any more than it includes heads of
argument. In any event, as the applicant was not raising
prescription as a defence
to the third respondent’s claim it
was ill-founded in the first place.
Accordingly the issue of
prescription cannot be entertained in these proceedings.
The arbitrator’s
findings
In deciding the question
of procedural fairness the arbitrator found that the chairperson had
interfered "too much with the
process instead of demonstrating
impartiality" as a chairperson. She found that Montso's second
representative in the hearing
had been warned by the chairperson in
circumstances where the first representative had been charged for
misconduct for asking
certain questions in the hearing. The
arbitrator believed this constrained the employee’s
representative in the conduct
of his defence of the employee and
compromised the principle that justice must not only be done but be
seen to be done. For this
reason, the arbitrator found the dismissal
had been procedurally unfair. This issue is discussed in greater
detail later in this
judgment.
Before mentioning the
arbitrator's findings on the question of substantive fairness, it is
necessary to elaborate a bit on the
context in which the insolence
and alleged refusal to obey a command took place. Groenewald said
that he had originally discussed
the question of Montso's transfer
with him, but at that time had not given him a date of the transfer.
It appears that it was
only on 29 May 2006 that Montso was
instructed to report at All Lite the following day.
According to the
testimony of S Mokake, who was the supervisor who gave Montso the
instruction to report at All Lite, Montso raised
the question of
transport money to go to All Lite. He also raised the fact that he
was a shop steward and needed to serve his
constituency at Giflo,
which among other things required him to attend union meetings at
16h00 on Wednesdays at Giflo’s
premises.
When it was reported to
Groenewald that Montso was refusing to go to All Lite unless he was
given transport every morning and
was back at Giflo by 16h00 on
Wednesdays to attend union meetings, Groenewald phoned the applicant
and told him that he must
go to All Lite the following morning.
Groenewald complained that Montso had responded rudely to him
because Montso put the phone
down on him during the phone
conversation, but Groenewald conceded that he could not be sure if
it was Montso who cut him off.
On 30 May 2006, Montso
did not report for work at All Lite but reported at Giflo, contrary
to Groenewald’s instruction to
him. Groenewald then called a
meeting between himself, D Lubbe, and Montso in which he reiterated
the instruction that Montso
must report for work daily at All Lite.
He testified that Montso responded disrespectfully by shouting at
him and then covering
his ears with his hands. Montso admitted to
putting his hands over his ears, but denied that he shouted at
Groenwald. Rather
he claims he was the one being shouted at, and he
covered his ears with his hands to prevent himself being provoked to
react
in a similar fashion.
Despite the tensions in
this interaction, management did agree to give Montso transport
money up front, contrary to the company’s
normal policy of not
paying transport allowances in advance. After the meeting Montso was
given R 50-00 for transport and the
company still transported him to
All Lite that day. The events up to this point were dealt with under
charges one, two, four
and five against Montso.
The third charge against
Montso related to an allegation that he was singing and dancing in
the grinding room area, as a result
of which other workers were
watching him instead of working. Mr Heyneke, the grinding room
manager, testified that when he approached
Montso to stop his
distracting behaviour, Montso did not respond but simply waved his
hand at him, closed his ears with his hands
and walked away. Montso
simply denied having behaved like this in the grinding room but does
admit that he was there while waiting
for his transport to All Lite.
The arbitrator
pronounced on the issue of substantive fairness thus:
"
With regard to
the substantive fairness I am also persuaded to agree with the
applicant that the applicant was not insolent towards
his superiors.
He closed his ears because he was being shouted at and he was
restraining himself from acting in like manner and
undermining
authority. With regard to [his] refusal to obey lawful instructions
on that day, I find the applicant’s explanation
very reasonable
that he did not have transport money due to the fact that he was
given short notice of a transfer. He was actually
told to go to All
Lite on 29th May and the respondent had not made any prior
arrangements to warn the applicant on time about such
a transfer. I
cannot accept the respondent’s argument the applicant was
expected to have money because it was the beginning
of the week.
People budget for different things in life with the money and it was
very important for respondent to give the applicant
adequate notice
about the transfer to All Lite to let him budget for the transport. I
also disagree with the respondent's argument
that the applicant
wanted to change the company's policy by asking for money in advance.
He was simply not informed on time about
the transfer and had just
incurred expenses when he buried his grandmother.
I find it was unfair
to dismiss the applicant for the offences he was charged for. There
was no
conclusive evidence
that the applicant
was insolent with regards to the three charges and I find the
applicant not guilty of all the offences for which
he was charged.
"
Grounds of review
The applicant broadly
claims that the arbitrator “
...committed gross
irregularities in relation to the conduct of the matter and that
she did not properly apply her mind to issue and facts
which were pertinent before her and the conclusions which she seeks
to
draw not justifiable.
” However, such a general
statement needs detailed substantiation, and it is only when the
specific complaints raised by
the applicant are considered that the
real merits of the review application can be properly evaluated.
The applicant proceeds
to point out aspects of the arbitrator's award which it describes as
'factually incorrect'. It complains
that the arbitrator appeared to
accept everything in Montso's evidence without appreciating the
applicant’s evidence.
For instance, it cites
the fact that the arbitrator stated in relation to what transpired
at the disciplinary hearing that: "
The representative had to
cross-examine Mr Groenewald after listening to a tape recording
which was not even very clear because
the chairperson could not
allow Mr Groenewald to testify for the second time to be
cross-examined by the new representative
". The arbitrator
was referring to what happened in the disciplinary hearing after
Montso’s first representative had
been expelled from the
hearing by the chairperson. The applicant points out that in fact
Groenewald was cross-examined by the
second representative after
being given an opportunity to listen to the recording of
Groenewald’s evidence in chief, and
that no objection had been
raised to this procedure at the hearing. In her evaluation of the
procedural fairness of the enquiry
the arbitrator made no reference
to this issue. Rather, her findings in this regard relates more to
what she believed was the
stifling effect of the chairperson warning
the second representative at the enquiry not to misconduct himself
like his predecessor.
The arbitrator’s
finding of procedural unfairness
Another supposedly
important flaw in the reasoning of the arbitrator identified by the
applicant was that she stated that the
second employee
representative at the disciplinary enquiry was warned by the
presiding officer at the
commencement
of that hearing that he
would be charged in the same way as his predecessor if he did not
conduct himself properly. The applicant
makes much of the fact that
this warning was not issued at the start of the enquiry because the
second representative was not
present at that stage. It points out
that the arbitrator herself
later
mentions that the fourth respondent testified that it was in the
middle
of the hearing that the second representative was
warned he would be charged in the same way as his predecessor if he
continued
asking "certain questions".
The applicant emphasises
also that it was not the questions which the first representative
asked but the manner in which he conducted
himself during the course
of the hearing which led to him being expelled and charged with
misconduct. In the arbitration hearing,
the chairperson of the
enquiry, Mr L Steenkamp, testified it was not anything in particular
which the first representative had
said which was disrespectful, but
the ‘aggressive’ way in which he said it. It is true
that the arbitrator concluded
that the Montso’s second
representative, Mr G Mashiane, felt constrained in asking questions
because his colleague had
been charged for misconduct for asking
certain questions.
This was not an entirely
accurate reflection of the evidence. What Mashiane complained about
was that he had been told he would
be charged if he was
disrespectful and disrupted the hearing. However, it is clear from
his evidence that he certainly did feel
uncomfortable when he
examined the employer's witnesses and this constrained him in the
conduct of the defence of Montso. I do
not think that in the
circumstances, much turns on the fact that the arbitrator
incorrectly referred to Mashiane’s predecessor
being charged
for asking specific questions, rather than for acting
disrespectfully. It was reasonable for the arbitrator to
have
concluded that threatening to charge a representative with
misconduct, after his predecessor had just been expelled and
charged
for the way he had conducted Montso’s defence, would have
dampened the new representative’s own enthusiasm
for spirited
cross-examination and reduced his effectiveness as a representative.
Nothing on the face of the record of the disciplinary
enquiry
demonstrates that Mashiane had committed misconduct which would have
warranted such a warning.
When Mashiane was
cross-examined in the arbitration hearing by Steenkamp, it was put
it to him that Steenkamp had only warned
him at a stage
after
a verdict had been reached when an altercation had arisen about
whether or not closing argument could be presented. However,

Mashiane insisted that the occasion in question was merely the last
time he had been accused of disrupting the enquiry and that
the
threat had also been made while he was questioning a witness.
The thrust of the
arbitrator’s finding was that Mashiane’s ability to
conduct his member’s defence was inhibited
and the chairperson
had exerted an improper influence on him which rendered the
proceedings unfair in the procedural sense. On
the limited evidence
available this was certainly a possible conclusion that might have
been reached and I cannot say it was
an unreasonable one.
In circumstances where
one representative was already facing disciplinary charges relating
to his conduct in the same hearing,
management should be
particularly sensitive to the possibility that such drastic action
can cast a threatening and oppressive
shadow over the continued
proceedings, which might create an impression in the mind of the
employee and his representative's
that a robust defence will not be
tolerated, especially if it involves challenging senior management
witnesses. Other measures
can be used to ensure orderly proceedings.
Adjournments to allow the tempers of witnesses and representatives
to cool, a cautionary
word without the threat of disciplinary
action, or the clarification of the rules of engagement are examples
of less draconian
ways of imposing order on unruly conduct. It is of
course accepted that representatives of both parties should treat
witnesses
with respect and gratuitous abuse of witnesses is
unacceptable, but it must also be recognised that in order to test a
witness,
propositions may be made and a witness's integrity may be
challenged in ways which might not be appropriate in the context of
ordinary workplace interactions between subordinates and superiors.
Chairperson's should make due allowance for the adversarial
context
of an enquiry.
The grinding room
incident
The applicant also
submits that the evidence of Heyneke concerning Montso’s
behaviour in the grinding room on the morning
of 30 May 2006 was
completely ignored by the arbitrator. Mr Montso’s response to
Heyneke’s account of what transpired
in the grinding room at
that time, which has been related above, was simply to baldly deny
it
The applicant submits
that because there was no good reason for Montso to be in the
grinding room at the time as he was waiting
for transport to All
Lite, that Heyneke’s evidence ought to have been preferred.
More pertinently, the applicant submits
that if one rejects
Heyneke’s evidence, one must necessarily have concluded that
it was trumped-up evidence. There was
no reason advanced by Montso
why Heyneke would have done that. Heyneke was not involved in the
interactions between Montso and
other managers relating to his
transfer.
A related difficulty
raised by the applicant regarding the arbitrator’s evaluation
of the evidence in the grinding room
incident, is that Heyneke also
a testified that Montso had ‘closed his ears’ when he
approached him to request him
not to disrupt work in the grinding
room. This evidence clearly resonates with the evidence of the other
witnesses about the
interaction between Montso,Groenewald and Lubbe
the same morning. Although Montso provided an explanation why he
closed his ears
during his encounter with Groenewald and Lubbe,
namely to avoid being provoked, the dismissive gesture he used was
clearly one
he was not averse to employing in his interactions with
management.
The arbitrator’s
failure to explain why she simply accepted the applicant’s
version of the interaction with Heyneke
and disregarded the latter’s
evidence does require an explanation, which is not apparent from her
analysis of the substantive
fairness of the dismissal. Accordingly,
it must be concluded that the arbitrator failed to give
consideration to relevant evidence
in relation to this incident ,
which means she failed to consider the evidence for and against the
charge arising from the incident
in a balanced way..
The employee’s
failure to report for work at All Lite
In relation to the
charge that Monsto failed to comply with an instruction to report
for work at All Lite on 30 May 2006 because
he went instead to
Giflo, the applicant submits that it is clear from the evidence that
Montso did not comply with the instruction
from Groenewald that he
should report at All Lite that day. The arbitrator's analysis only
deals with whether or not Montso had
disobeyed the instruction in an
implicit sense. Even if she did not find expressly that Montso had
not complied with the instruction,
it is implicit in her reasoning
that he did receive the instruction, but that he had a good
justification for not complying with
it. She accepted Montso had a
valid reason for not reporting at All Lite because he had no money
for transport.
The applicant submits
that the arbitrator failed to consider that Montso must have had
funds for transport to Giflo in order to
get there that morning and
therefore he could have gone to All Lite. However, this was never
put directly to Montso and the arbitrator’s
conclusion that
his reason for not reporting at All Lite was a valid one was
reasonable.
The upshot of the
arbitrator's reasoning was that even if Montso was technically
guilty of the charge of not reporting for work
at All Lite, no
sanction should have been imposed because of his explanation for not
doing so. The arbitrator also pertinently
points out that even if
the policy of the company was that transport money would be paid in
arrears, the applicant was only notified
the day before he was
supposed to travel to All Lite and would not necessarily have made
provision for the additional transport
costs on that occasion.
Insolence arising from
the telephone conversation
Another ground of
complaint raised by the applicant, which is difficult to distinguish
from a ground of appeal, concerns the arbitrator’s
evaluation
of the incident in which the applicant is alleged to have put down
the phone on Groenewald during their conversation
on 29th May 2006.
The applicant contends that, in the light of other evidence relating
to Montso's behaviour, the overwhelming
probabilities were that he
probably did put down the phone on Groenewald, given that he had a
history of not obeying instructions.
I agree with the applicant that
this would have been a fair conclusion to draw on the probabilities.
However, Groenewald himself
conceded that he could not say that it
was Montso who put the phone down and Montso’s own evidence
was that the telephone
"just went off".
In the disciplinary
enquiry, Montso had offered a different explanation for the
termination of the telephone conversation. He
claimed then that he
could not hear because of the surrounding noise and switched of the
phone.
The arbitrator’s
conclusion that Montso had not been insolent on this occasion is
also one she did not explain, except to
say there was no "conclusive
evidence" that he was guilty on that occasion. Quite apart from
what appears to be a criminal
standard of proof applied by the
arbitrator, the fact that there
was
evidence for and against
the conclusion that Montso put down the phone on his manager
demanded at least some explanation why
the arbitrator reached the
conclusion that the employer had failed to discharge the onus of
proving this charge.
There is also no
indication the arbitrator even considered the other factual
components of the charge of insolence which were
based on what
transpired during that phone call. Groenewald testified that Montso
had shouted at him and repeatedly said "No,
and no, and no,
no..." while he was trying to speak to him. Under
cross-examination, Groenewald further said that if Montso
did have
difficulties in complying with the instruction to go to All Lite, he
could have said so during the telephone conversation.
However Montso
had refused to engage in any discussion after Groenewald had made it
clear that the company was willing for him
to continue attending the
monthly shop steward meetingsat Giflo, but not the weekly union
meetings. Groenewald claimed that the
issue of transport money never
arose during that conversation.
Montso's version was
that Groenewald was the one who would not listen when he raised the
issue of transport money with him on
the phone. He admitted saying
“no” more than once to Groenewald when the latter
repeated his instruction that he
should go to All Lite the following
morning. What he wanted to explain was that he said ‘no’
because he did not have
transport money, but Groenewald would not
allow him to. Montso testified: "
I did not shout at him. He
said to me look, when you knock off do not come to Giflo, go
straight home and the following morning
you must report again at All
Lite. Then I will meet you there and tell you everything I intend
you to do.
"
As already mentioned,
Montso denied putting the phone down on Groenewald and said that he
did not know what happened to the call
but it was just cut off and
he did not know why. When confronted with his previous version of
how the conversation terminated,
which he presented in the
disciplinary enquiry, Montso confirmed that despite Groenewald’s
own evidence that he could hear
Montso clearly, it was noisy on his
(Montso’s) side of the phone. Nevertheless he said he did not
hang up because of the
noise and he denied making a statement to
this effect in the disciplinary enquiry, even though it appears in
the minutes of that
enquiry.
On an overall
consideration of the disputed contents of the telephone
conversation, I am persuaded that the arbitrator did not
give
consideration to all the material evidence relating to the charge.
In particular, she did not deal with important aspects
of the
alleged insolent conduct and gave no indication why she
disregarded the contradictions between Montso’s
evidence at the enquiry and the arbitration, or why she
simply ignored Groenewald’s evidence of what he claims
Montso said before they were cut off.
The arbitrator
accordingly failed to consider relevant evidence in relation to this
charge in addition to misconstruing the standard
of proof that the
employer had to satisfy in proving the charge.
The employee’s
disciplinary history
Lastly, the applicant
submits that the arbitrator failed to give due weight to Montso's
previous disciplinary history. However,
the arbitrator did
acknowledge that Steenkamp testified that Montso was on a previous
warning for a similar charge and that that
was the reason his
services were terminated. The arbitrator also acknowledged the
evidence of Groenewald, who confirmed that
he believed dismissal was
appropriate because the applicant had been very disrespectful and
had two previous warnings for a similar
offence of refusing to
follow the lawful instructions. In
her
analysis, the arbitrator further notes that Groenewald had conceded
that the first written warning given had expired.
However, the arbitrator
failed to address the relevance of the final written warning, which
had been issued on 5 September 2005
and which was still valid at the
time of Montso's dismissal. It is worth noting that the final
written warning was issued as
a result of his failure to deliver a
report despite having already been given a written warning for
failing to do so. It appears
the arbitrator failed to give any
consideration to this. Nevertheless, because the arbitrator had
concluded that the applicant
was not guilty of the charges, it
follows that she would not have had reason to consider the relevance
of any previous warnings
because they would not have arisen as an
issue. Accordingly, Montso’s previous disciplinary history
only becomes relevant
in the context of re-evaluating the fairness
of his dismissal after setting aside the arbitator’s findings
on substantive
fairness.
Conclusion
In summary, I am
satisfied that arbitrator’s reasoning on the question of
procedural unfairness is justifiable when evaluated
against the
evidence. The same cannot be said of the arbitrator’s
evaluation of the evidence of the substantive charges,
which is
wanting in a number of important respects, as discussed above. Given
the time which has elapsed since the arbitration
award was handed
down and the adequacy of the record, this is a case in which it is
appropriate for the court to substitute its
own findings for those
of the arbitrator and to substitute an order of relief in keeping
with those findings.
Re-evaluation of the
substantive fairness of the dismissal
In relation to the first
charge of shouting at Groenewald and putting down the phone, the
contradictory explanations given by
Montso as to how the
conversation terminated, suggest on the probabilities that he
terminated it, because he would not go to
All Lite unless his
transport and meeting arrangements had been sorted out. It is not
unlikely that he refused to go as instructed.
Groenewald only phoned
Montso because Montso had already told his other superiors that he
would only go if he could return in
time for meetings. Consequently
he had not complied with Mr Groenewald’s instruction. However,
I also accept that it was
not unjustifiable for him to have tried to
ensure that his transport arrangements were sorted out beforehand
and to get clarity
on how the move might interfere with his shop
steward duties. Moreover, there is no evidence that he was refusing
secondment
to All Lite as such. Accordingly, his failure to report
on 30 May 2006 at All Lite was not altogether unreasonable in the
circumstances.
On its own I do not think it warranted Montso's
dismissal.
Nevertheless, those
legitimate concerns could not justify his conduct in the grinding
department, which was clearly disruptive
and unprovoked. His
response to Mr Heyneke was contemptuous and he offered no
explanation why Heyneke would have falsely tried
to implicate him,
which follows necessarily from Montso's bare denial of this episode.
Moreover, Heyneke’s evidence that
Montso blocked his ears is
consistent with his conduct in the meeting with his other managers
that morning. I am satisfied he
most probably did behave as alleged
and was guilty of the related charge. The previous final warning was
clearly relevant and
should be taken into account in assessing the
gravity of his conduct.
What Montso's behaviour
demonstrates, is that he did not accept the authority of management
to manage as it saw fit. He was prepared
to make fun of a manager,
Heyneke, in front of Heyneke's staff in a manner which showed he was
thumbing his nose at managerial
authority in the workplace. The fact
that he conducted himself in that way despite a warning for refusing
to obey an instruction
issued after a previous warning to comply,
indicates that his attitude towards managerial authority had not
been moderated by
the warning and there is no reason to believe it
would improve if he was yet again issued with a final warning.
I have also indicated in
the discussion of the arbitrator’s findings on the Montso’s
alleged insolence during his
phone call with Groenewald,that the
arbitrator did not consider the factual allegation about what was
said before the call ended,
but dwelt on the question of
how
the call had terminated. Given Montso’s conflicting evidence
on how the call ended, I believe it is more probable he did

terminate the call, a fact he had originally conceded in the
internal enquiry, albeit that he said this was on account of the

alleged noise. Secondly, I believe it is more likely that he was
aggressive and obstructive in his conversation with Groenewald
on
the phone. It is clear from what transpired the following day that
the firm was willing to accommodate Montso’s request
for
transport money. There is no reason to believe if he had been
prepared to discuss this with Groenewald on the phone that
this
issue could have been resolved then and there. It is more likely
that the phone ‘conversation’ did not achieve
anything
because Montso was refusing to go to All Lite unless the problem of
his attendance at Wednesday afternoon union meetings
was resolved
first. Montso agrees he said ‘no’ to Groenewald, and it
is more probable this was said in relation to
his refusal to go to
All Lite unless he could attend union meetings on Wednesdays at
Giflo, and not because of a disagreement
over funding transport.
Accordingly, I do not
think Montso’s dismissal was substantively unfair, even if his
conduct in failing to report at All
Lite on 30 May 2003 was not
unreasonable in the circumstances. The contemptuous attitude he
displayed towards Groenewald and
to Heyneke could not be justified.
Moreover, the discrespectful conduct he showed towards Heyneke was
particularly undermining
of Heyneke as it occurred in front of
Heyneke’s subordinates in the grinding room. When this is
considered against the
backdrop of a final written warning relating
to his refusal to accept instructions, the indications are that
another final written
warning was unlikely to modify his behaviour.
Remedy
In this instance, I
believe the inappropriate threat of disciplinary measures against
the second representative in the context
of the enquiry in question
was sufficiently serious to warrant an order of three and a half
month's remuneration.
Costs
As both parties are
partially successful and it cannot be said that either acted in bad
faith in bringing or defending this application,
no order is made as
to costs in the main application. However, I have made an order in
relation to the unnecessary additional
costs the fourth respondent
incurred in having to address the applicant’s belated and
misplaced prescription claim
Order
In the light of the
above the following order is made
The second respondent’s
arbitration award issued on 03 February 2007 under case number MEGA
13041 is reviewed and set
aside in respect of her findings that the
fourth respondent’s dismissal was substantively unfair and
that the fourth
respondent should be reinstated.
The second respondent’s
findings are substituted with a finding that the fourth
respondent’s dismissal was substantively
fair but
procedurally unfair
The relief of
reinstatement in the second respondent’s award is substituted
with an order that the applicant is required
to pay the fourth
respondent an amount equivalent to three and a half months’
remuneration at the time of his dismissal
equivalent to R 20,328-00
within 15 days of the date of this judgment.
The parties must pay
their own costs for the review application, save that the applicant
must pay the fourth respondent’s
costs of preparing a reply
to its claim that the arbitration award had prescribed.
R LAGRANGE, J
JUDGE OF THE LABOUR
COURT
Date of hearing: 20
August 2010
Date of judgment: 16
August 2011
Attendance:
For the Applicant: Mr
Brian Bleazard of Brian Bleazard Attorneys.
For the Respondent:
Advocate Jabu Luvuno instructed by Ranamane Phungo Incorporated.
1
Para
[33] at 1318. In passing, it should be noted that it does not appear
from the judgment in
Sifuba’s
case, that the question
was raised whether or not an arbitration award’s status in
terms of the
Prescription Act might
in any way be affected by
s
143(1)
of the LRA, which states that an ‘
arbitration award
… may be enforced as if it were an order of the Labour Court,
…
’
2
Para
[36] at 1319.
3
Paras
[40] – [41] at 1320.
4
Paras
[13] – [16] of the unreported judgment.